Tag Archives: government

Judge Shopping

Posted on by
Reply

A Wall Street Journal editorial correctly decried this, and a letter writer to the news outlet’s Letters section correctly included the Northern District of Texas as a particular judge shopping target for bringing suits convenient to the Trump administration. The letter writer also pointed out that, as an attempt to mitigate, if not eliminate judge shopping, the Judicial Conference of the United States, strongly discourag[ed] the practice, and some Federal districts changed their rules to enhance random assignments of their judges—but those rules are District by District.

Lost in this kerfuffle (cynically so, say I given that judges as a group surely know better) is a nation-wide requirement of centuries-long standing [emphasis added]:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed….

And

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved….

For those of you following along at home, those are from our Constitution’s 6th and 7th Amendments, respectively.

For the quibblers of the lawyer class, the latter is easily extensible by statute to explicitly require the civil suit to occur in the State and district wherein the [cause of the tort] shall have [first occurred].

The ability of Congress to make such a thing explicit is in this nation-wide requirement of equally centuries-long standing:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

The District courts, as creatures of Congress, have their jurisdictional authorities set by Congress. This Congressional power over jurisdictional authority extends to the Supreme Court [emphasis added]:

…the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Again, for those of you following along at home, those are from our Constitution’s Art III, Sect 1, and Art III, Sect 2, respectively.

All that’s required to eliminate judge-shopping is a renewed respect for and enforcement of our Constitution.

There’s a Hint There

Posted on by
Reply

President Donald Trump’s (R) National Security Council is being reorganized and downsized streamlined in a badly needed revamp. One demonstrated need is this:

The goal, according to one official, is to streamline processes within the NSC, which coordinates national security and foreign policy for the president….

This is a continuation of Fiona Hill’s (remember her?) anger over her ad hoc interagency coordination group foreign policy inputs not being obeyed by Trump I. It’s not the NSC’s job—or it should not be—to coordinate national security and foreign policy for the President. It’s the NSC’s job—or it should be—to coordinate national security and foreign policy inputs to the President’s own national security and foreign policy development and decisions.

The move is intended to increase DoD’s and State’s direct involvement in those inputs, and that’s entirely appropriate. Homeland Security’s inputs should be increased, as well, given that that Department was created long after the NSC. The three departments, too, already form—or should form—the core of all of those policy development inputs.

Serious Judicial Error

Posted on by
Reply

Federal District Judge Myong Joun (District of Massachusetts) has issued a preliminary injunction requiring the Trump administration to desist from its moves to dismantle the Department of Education. Fair enough; the Department was created by Congress, the administration can jawbone for its elimination, but only Congress can do so.

Unfortunately, the judge didn’t stop there. He also ordered DoEd to rehire those employees who’d been RIFed as excess to the Department’s needs.

Not only is there no evidence that defendants are pursuing a “legislative goal” or otherwise working with Congress to reach a resolution, but there is also no evidence that the [reduction in force] has actually made the Department more efficient[.]

Judges don’t get to dictate the purpose of agency/Department heads’ firings of employees. RIFs have as their purpose the removal of unneeded employees—the essence of making any government agency more efficient.

Joun gave the lie to his employment ruling by his decision to not say how the RIFs reduced Department efficiency. He simply wholesale-ly accepted the plaintiffs’ (a group of states, school districts, non-profit organizations, and labor unions) claims regarding efficiency and coupled that with his blithe, unsubstantiated rejection of the government’s position.

It gets worse. Joun wrote in his opening

Defendants do acknowledge, as they must, that the Department cannot be shut down without Congress’s approval, yet they simultaneously claim that their legislative goals (obtaining Congressional approval to shut down the Department) are distinct from their administrative goals (improving efficiency). There is nothing in the record to support these contradictory positions.

Even logic doesn’t seem to matter. There’s nothing contradictory in DoEd Secretary Linda McMahon both working with Congress to eliminate the Department while simultaneously working to make the Department more efficient—which she must do while the Department remains in existence.

Beyond that, judges do not get to dictate to a coequal and separate branch what that branch’s employment practices must be. The judge’s role in the present case, his sole legitimate role under our Constitution and his oath of office, is to adjudicate whether these firings comport themselves with statute and with our Constitution.

Activist judges, judges who go beyond that limit, are violating their oaths of office; from that they are not hold[ing] their Offices during good Behavior. That is an impeachable offense.

This one would have been fine, if on disagreeable ground, had he stopped with his order to stop dismantling DoEd. His meddling in Executive Branch employment decisions has gone too far.

Full stop.

Joun’s injunction can be read here.

There’s a Hint There

Posted on by
Reply

John Bolton has a Wall Street Journal op-ed in which he claims to be worried about the fate of the President’s National Security Council. I’ll leave aside the fact that his source is either a dishonest leaker or a voice in his head. This is what he buried toward the end of his piece:

Scowcroft’s model [of an NSC structure] bestowed a key advantage on the president: creating interagency staff who reached into bureaucratic depths gave him [the President] greater insight into potential agency agendas and disagreements before they rose to higher levels, thereby reducing the risks of confrontation and delay. A dramatically constrained NSC staff wouldn’t have such abilities.

Maybe—just maybe—it would be better to clean out the bureaucracies at those other agencies, eliminating agency agendas and the bureaucrats who push them, at the expense of the agenda of the White House for which they work.

Maybe—just maybe—it would be better to thin those agencies’ payrolls to shallow out those bureaucratic depths.

Maybe—just maybe—it would be better to install agency chiefs and deputies/assistants who would work with each other to resolve more of the disagreements, then consciously bring the remaining disagreements to the President for him to resolve—which is part of a President’s job.

No maybe, this time—it most assuredly would be better to fire those bureaucrats who would rather be confrontational than work as part of the team they were hired to be part of.

There’s the Problem

Posted on by
Reply

In an article centered on President Donald Trump (R) centralizing foreign policy in his office, Richard Haass, former president of the Council on Foreign Relations and staffer at State, NSA, and Pentagon, had this to say:

This is the most top-down administration in recent memory. This isn’t a staff-driven administration.

And there it is, in so many words. In the particular case, the President of the United States is, by Constitutional design, our nation’s foreign policy chief. The foreign policy-influencing centers in the Executive Branch—State, NSA, et al.—all work for him. And so do those centers’ staffers, albeit through their Department and agency Secretaries and Directors.

More broadly, this is a career government staffer (before joining the left-leaning think tank) decrying the reduction in control exercised by the deep state/bureaucratic state/staffers. He’s an echo of Fiona Hill’s angry objection that earlier-President Trump wasn’t listening to and obeying her ad hoc committee regarding Ukraine.